Since Axios on HBO teased an interview with President Trump about his opinions on birthright citizenship and his [mistaken] belief that those born on U.S. soil could have their citizenship stripped by an executive order alone, many have become concerned about their status in the United States. Children of the undocumented who have grown up never worrying about their livelihoods in the U.S. are now, justifiably, concerned. However, the real question is: Does the President really know what he is talking about? Or are these merely the ramblings of an uninformed man spouting off his own “fake news”?
As many legal scholars and news outlets have reported, the President’s proposed “Executive Order” will never suffice, regardless of the 14thAmendment’s strange and unclear language of: “and subject to the jurisdiction thereof.” US Constitution, 14thAmendment.
Supreme Court Justice Gray, writing for a 6-2 majority, wrote in United States v. Wong Kim Ark, 169 U.S. 649 (1898) “In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” That is to say, that for more than 150 years, birth in the United States, regardless of race or ethnicity, caused an individual to be a U.S. citizen. In U.S. v. Ark, the factual basis is that a man born of Chinese parents in the United States was questioned about his citizenship status on the basis that his parents were Chinese, living in China. Historically at the time of the decision, the US was in the throes of racial tensions following the Chinese Exclusion Act.
Fortunately, in the Arkcase, the Court is unequivocal that just as the Civil Rights movement sought to assure slaves that they were undoubtedly U.S. citizens as a result of their birth on U.S. soil, that so too any person, “’All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race.” Arkat 676.
If the President is going to attempt to argue about the meaning of the 14thAmendment, it is going to be with respect to the definition of “jurisdiction thereof,” which is not unequivocally analyzed in the Arkdecision. Importantly though, courts have recognized jurisdiction based upon presence of a person in the United States. Even foreign companies, with certain minimum contacts in the United States are “subject to the jurisdiction” of our laws. International Shoe Co. v. Washington, 326 U.S. 310 (1945); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). The only individuals not “subject to the jurisdiction” of the United States are those who are working for a foreign government within our physical bounds.
Therefore, regardless of what President Trump says when we all inevitable watch the Axiosinterview train wreck, know that this is not coming from a man with experience in the law. He is not a lawyer, and generally cites to “his people” who tell him he can make an executive order. Rather, the text of the 14thAmendment combined with more than 150 years of case law will prevent such action from ever taking effect.
In the meantime, if you are concerned about your status or that of your family members, contact an experienced immigration attorney to assist you with your case. The Fogle Law Firm brings more than 25 years of experience to our clients and look forward to serving you.